General

John A. Waizenegger, Appellant, v. Benevolent and Protective Order of Elks Lodge #1097 of Middletown, Respondent

205 A.D.2d 615614 N.Y.S.2d 286·New York Supreme Court, Appellate Division·1994·NY

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Opinion

John A. Waizenegger, Appellant, v Benevolent and Protective Order of Elks Lodge #1097 of Middletown, Respondent. [614 NYS2d 286] [MAJORITY] In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Peter Patsalos, J.), dated November 25, 1992, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. We agree with the Supreme Court that the plaintiff failed to make a prima facie case that the defendant created the condition which caused the accident or that it had actual or constructive notice of that condition (see, Lewis v Metropolitan Transp. Auth., 64 NY2d 670, affg 99 AD2d 246; Payne v Big V Supermarkets, 140 AD2d 422). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.